The year 2001 starts with a commendable judicial
intervention outlawing the continuing malpractice of fatwa. In a landmark
judgement (Writ Petition No.5897 of 2000), a Division Bench of the High
Court Division of the Supreme Court of Bangladesh, comprising Justice Md.
Gholam Rabbani and Justice Najmun Ara Sultana, the first woman judge in the
country, declared any fatwa issued from an unauthorised source is illegal
and also ruled that giving a fatwa by unauthorised persons(s) must be made a
punishable offence by Parliament immediately. The verdict was delivered
against the backdrop of an increasing number of fatwas, mostly issued by
mullahs, half-educated or educated with inadequate maddrasah education
targeting the vulnerable segments of the society.

The High Court judgement on the first day of January 2001
will, no doubt, have significant impacts on the societal context of
Bangladesh. Many NGOs, human rights activists and groups welcomed the
decision while a section of religious personalities, groups and political
parties including Islami Oikkya Jote (IJO) considered the judgment audacious
and have already declared the two judges Murtads.

Setting the Ground

In the present case, the judges of said Division Bench
issued a suo motu rule (on its own initiative, without being approached by
any party) on 2 December 2000, upon a news item published in the Daily
Bangla Bazar Patrika on the same day. The rule nisi was on the Deputy
Commissioner of Naogaon, to show cause as to why action shall not be taken
against him, for his failure to take action against an incident of illegal
fatwa in Naogaon and to show cause as to why his inaction would not be
violative of Section 7 of the Muslim Family Laws Ordinance, 1961 and
Sections 498, 508 and 509 of the Penal Code.

According to the report a woman named Shahida, wife of
Saiful of Naogaon district was forced to marry her husband's paternal cousin
Samshul on a fatwa by Hazi Azizul Huq that her marriage had been dissolved
consequent to an incident of about one year ago. Her husband allegedly
uttered the word 'talaq' out of anger, but thereafter continued their
married life. On 16 November 2000, while Saiful was visiting his sister in
another village, Hazi Azizul Huq, a neighbour who claimed to have heard the
pronouncement of talaq, himself issued a fatwa that Shahida must contract a
hilla (interim marriage with a third person for reunion of the couple in a
broken marriage) for enabling her to resume relations with her 'divorced'
husband. Accordingly Shahida was forced to consummate the marriage with
Samshul. Later, Saiful refused to accept Shahida as his wife and sent her
back to her father's house.

On request, the Division Bench allowed Ain-o-Salish
Kendra (ASK) to appear in this case as an intervenor. Considering the
importance of the case, several other lawyers and experts applied before the
court to be included as Added Parties. The court also accepted their
applications. On 31 December 2000, the court heard their submissions on the
illegality of unauthorised fatwa in Bangladesh. Citing a number of instances
of fatawabazi (issuing and enforcing fatwa) Dr. Kamal Hossain, on behalf of
the intervenor, submitted that those of fatwas were the open challenge to
the fundamental rights guaranteed under Articles 27 (Equality before law),
28 (Discrimination on grounds of religion etc.), 31(Right to protection of
law), and 35 (Protection in respect of trial and punishment) of the
Constitution of Bangladesh. Ms. Tania Amir contended that the instant fatwa
is a punishable offence under section 508 of the Penal Code and there are
also other sections in the Code to punish the person involved in the
execution of the fatwa. Mr. Amir-ul Islam also endorsed the views expressed
by Dr. Kamal Hossain and Ms. Tania Amir.

Judging the Judgment

Unfortunately in some newspapers the judgement has been
given undue credit of reforming Muslim law of talaq; some dubbed the
judgement as progressive as it purportedly "has overturned a provision
of the Islamic law." Such misinterpretations of the judgement are bound
to create confusions in public. It is important to analyse the judgement on
the basis of its content. The judgement has a number of critical aspects to
be considered:

Reaffirming and Reinforcing Existing Law: In Bangladesh
section 7 of the Muslim Family Laws Ordinance (MFLO) governs the method
relating to the dissolution of a Muslim marriage at the instance of the
husband and the remarriage after the dissolution. Section 3 of the MFLO
asserts that the provisions of this Ordinance shall prevail over any other
law, custom, and usage. The MFLO in section 7(6) clearly discourages hilla
marriage. Dissolution of marriage simply by uttering the word 'talaq' once
or thrice at the same time is against the dictates of the Quran and the
Hadith as well as invalid in law under section 7 of the MFLO.

Defining and Distinguishing Fatwas: Fatwa is defined as a
legal opinion of a lawful person or authority; therefore, the judges do not
find any authority except the courts of law to decide all questions relating
to legal opinion on the Muslim and other laws as in force. The judgment
makes it clear that frequent religious sermons as issued in many parts of
Bangladesh specially in rural areas in the name of fatwa do not reflect the
fatwas as understood under shariah.

Enacting Legislation: The judges strongly recommend for
enacting a legislation that will penalise the unauthorised practice of
issuing and enforcing illegal fatwa. It will be interesting to note how the
House of the Nation (Parliament) responds to this request specially when a
group of MPs and politicians propagating the so called myth of parliamentary
sovereignty and ostensibly demanding for establishing parliamentary control
over judiciary.

Promoting Proper Religious Education: The judges observe
that the existing maddrasah education is defective and as a short term
measure, they recommend that study of Muslim Family Laws Ordinance must be
introduced not only in maddrasahs but also in schools.

Utilising Formal Religious Assemblage: The Friday Jumma
prayer is of extremely importance as Imams/Khatibs deliver weekly khutba
(religious sermon) on different aspects of life and living. The judges
recommend the concerned authority to direct the Khatibs of all the mosques
to discuss the MFLO in their Friday sermons.

Unifying Different Systems of Education: They rightly
point out the need to address the wider social causes contributing to the
practice of fatwas and as a long -term measure, the judges propose for
introducing a unified education system.

Controlling Freedom of Religion: An enactment to control
the freedom of religion subject to law, public order and morality within the
scope of Article 41(1) (Freedom of religion) of the Constitution should be
promulgated. The judges strongly underscore the need to define and enforce
public morality. They remind the state of its duty to educate society.

In fact, the judgement fervently calls for concerted
action to combat religious extremism both on the part of the state and the
non-state actors including numerous mosques across the country.

Engendering Judicial Activism

Like some of the progressive courts of the world, the
judiciary of Bangladesh is also trying to adopt an activist, goal oriented
approach in the matter of interpretation of fundamental rights. It has
expanded the interpretation of fundamental rights and in the process
rewritten some parts of the Constitution through a variety of techniques of
judicial activism. The present judgement on fatwa is a glaring example of
such activism. The transition from traditional captive agency with a low
social visibility into a liberated agency with a huge socio-political
feasibility is an interesting development. The Supreme Court of India has
already undergone a radical change in the last few years and it is now
increasingly being identified by justices as well as people as 'the last
resort for the purpose of the bewildered.' It has, through judicial
activism, found a new historical basis for the legitimization of judicial
power and acquired a new credibility with the people.

Judges should be afforded full protection against any
threat or coercion they might have to face for being activist in their
approaches. At the same time, the judiciary has to take into consideration
indigenous reality and the spirit of the constitution and the laws of the
land as well. In this regard what Justice J.S. Verma of the Supreme Court of
India in the Jain Hawala case opined is worth remembering "judicial
activism is like a sharp-edged tool, which has to be used as a scalpel by a
skillful surgeon to cure the malady not as a Rampuri knife, which can
kill."

Urgency for a Knowledge-Based Dialogue on Religion

Undoubtedly the judgment, still subject to appeal, is a
landmark one. It reinforces the trend of interpreting Quran on the basis of
human rights and human dignity for which Islam is regarded not as a mere
religion but as a complete code of life, a progressive philosophy of life.
It also reminds us the daunting task of interpreting Quran should be left
with the most learned segment of the society, not with self-proclaimed,
semi-educated experts. Islam is a religion of peace and considered as the
most progressive one among all other religions even by its vehement critics.
The language of threat, fear, awe and hatred as often uttered and pronounced
by so-called religious leaders of the country is not of Islam. Unfortunately
a section of orthodox people with improper or inadequate religious education
has been discharging the crucial responsibility of preaching and
interpreting Quran, Hadith and other Islamic aspects of life for quite a
long time taking full advantage of the apathy of the concerned and liberal
segments of our society. This trend has to be reversed. We have to be very
cautious also about the common western propaganda that Islam is anti-human
rights and therefore, any stand against it is synonymous with
progressiveness. There is, in fact, no alternative of engaging into
knowledge based dialogues on religion and civilisation. The High Court
Judgement is a crystal-clear reminder of that.